Governor Kitzhaber and Justice Balmer (hereinafter the
State) answered and asserted various affirmative defenses,
including a statute of limitations defense, a laches defense, an
assertion that the "separate-vote" requirement interpretation
found in Armatta v. Kitzhaber, 327 Or 250, 959 P2d 49 (1998),
(and on which plaintiffs relied) was not retroactive, an
assertion that plaintiffs lacked standing to bring the actions,
an assertion that the courts do not have subject matter
jurisdiction over the subject of plaintiffs' actions, and an
assertion that it would violate the doctrine of separation of
powers for a court to entertain actions of the kind that
plaintiffs brought.

Plaintiffs appealed the trial court's ruling in State
ex rel McIntire v. Balmer, and then moved, pursuant to ORS
19.405, to have the appeal certified to this court. The Court of
Appeals certified that matter, and this court accepted that
certification.

Plaintiffs filed their opening brief in this court on
October 1, 2002. The state then moved to dismiss the case as
moot. The state's theory was that, because, in the interim,
Justice Balmer had been elected to the position to which he
originally had been appointed, the only appropriate form of
challenge to his holding office had to be made pursuant to ORS
258.016(2). However, under that statute, any such challenge had
to be brought within 40 days after the election. ORS 258.036(1).
Therefore, the state asserted, the matter is moot and should be
dismissed.

We move from the foregoing recitation of the procedural
history of this matter to the point that we find to be
dispositive. As previously explained, one of the state's
theories for mootness in this case is the idea that, because
Justice Balmer has been elected to a six-year term, any challenge
to the appointment process by which he first came to this court
now is moot. That point is correct, and plaintiffs appear to
recognize as much, unless the election process itself is flawed
in some way under the Oregon Constitution. Plaintiffs therefore
also assert (as they must, if they are to have a claim) that the
election process itself is constitutionally flawed because
Justice Balmer was not required either to be appointed from or to
run from a district but was, instead, allowed to run in, and was
elected from, the state as a whole. We focus now on that issue.

Members of the Supreme Court are elected for a term of
six years. See Or Const, Art VII (Original), § 3; Or Const, Art
VII (Amended), § 1 (both so providing). Originally, Supreme
Court justices also served individually as circuit court judges
and were elected from those districts wherein they performed that
circuit court function. As previously noted, Article VII
(Original), section 2, of the Oregon Constitution provided:

"The Supreme Court shall consist of Four Justices
to be chosen in districts by the electors thereof, who
shall be citizens of the United States, and who shall
have resided in the State at least three years next
preceding their election, and after their election to
reside in their respective districts: -- The number of
Justices, the Districts may be increased, but shall not
exceed five until the white population of the State
shall amount to One Hundred Thousand, and shall never
exceed seven; and the boundaries of districts may be
changed, but no Change of Districts, shall have the
effect to remove a Judge from office, or requre (sic)
him to change his residence without his consent."

However, the original judicial article of the Oregon
Constitution contemplated that a different form of court
organization might become more appropriate as the state grew.
Thus, Article VII (Original), section 10, of the Oregon
Constitution provided:

"When the white population of the State shall
amount to Two Hundred Thousand the Legislative Assembly
may provide for the election of Supreme, and Circuit
Judges, in distinct classes, one of which classes shall
consist of three Justices of the Supreme Court, who
shall not perform Circuit duty, and the other class
shall consist of the necessary number of Circuit
Judges, who shall hold full terms without allotment,
and who shall take the same oath as the Supreme
Judges."

Acting under the authority granted it by the foregoing
provision, the 1878 Legislative Assembly adopted a general law
that completely reorganized the judicial branch along the lines
anticipated in Article VII (Original), section 10: The Assembly
created two "distinct classes" of courts, viz., (1) a Supreme
Court; and (2) a separate trial division of the judiciary
consisting of "circuit judge[s]" to be elected from the then-existing judicial districts that theretofore had been used for
election of members of the Supreme Court. See General Laws of
1878, p 31-32, §§ 2 and 6 (so providing). The circuit judges
were required to be "residents of their respective districts at
the time of their election or appointment." Id. at § 9. That
general law placed no similar residential requirement on Supreme
Court justices. By necessary implication, then, justices were to
run for at-large seats from the state as a whole. And so the
procedure for the election of judges of this court has continued,
uninterrupted, to this day.

Plaintiffs alluded to the foregoing history in a
paragraph of their complaint in the parallel action against
Governor Kitzhaber. In that paragraph, they state that

"[s]ince 1878, no governor, including defendant
[Kitzhaber] has properly appointed a replacement
Supreme Court Justice and plaintiffs believe that
absent a declaratory judgment and injunction here,
defendant [Kitzhaber's] appointment to replace Justice
[as he then was] Kulongoski will violate the Oregon
Constitution."

That statement is founded on plaintiffs' fundamental premise,
which is that justices of this court must be appointed from and
elected from judicial districts, and may not instead be appointed
from, or be elected from, the state as a whole. As noted,
plaintiffs must be correct in that regard, or their case is moot.

We find no support for plaintiffs' assertion. The
authority conferred on the Legislative Assembly by Article VII
(Original), section 10, of the Oregon Constitution could not have
been more plain: It was left entirely to that body to determine
when and whether to change the structure of the state judiciary
by allocating the appellate part of the judicial work of the
state to a full-time Supreme Court and the trial work of the
state to a separate cadre of judges, to be called "circuit
judges." In 1878, the legislature chose to do precisely that,
and no more. It cannot be argued seriously that, in so doing,
the legislature either misapprehended its authority or misapplied
it. Therefore, from October 17, 1878 (the effective date of the
statute), to the present day, judges of the Supreme Court of
Oregon have been part of a "distinct class" that the legislature
chose to have the people elect from the state as a whole. Thus,
even if the 1910 constitutional amendment that created Article
VII (Amended) of the Oregon Constitution somehow were invalid --
an issue that we find unnecessary to address here -- there is no
question that Justice Balmer permissibly was elected from the
state as a whole.

"The Supreme Court shall consist of Four Justices
to be chosen in districts by the electors thereof, who
shall be citizens of the United States, and who shall
have resided in the State at least three years next
preceding their election, and after their election to
reside in their respective districts: -- The number of
Justices, the Districts may be increased, but shall not
exceed five until the white population of the State
shall amount to One Hundred Thousand, and shall never
exceed seven; and the boundaries of districts may be
changed, but no Change of Districts, shall have the
effect to remove a Judge from office, or requre (sic)
him to change his residence without his consent."

"An action at law may be maintained in the name of
the state, upon the information of the district
attorney, or upon the relation of a private party
against the person offending, in the following cases:

"(1) When any person usurps, intrudes into, or
unlawfully holds or exercises any public office, civil
or military, * * * created or formed by or under the
authority of this state[.]"

There is no question in this case that the office that Justice
Balmer now holds is a "public office" under the statute.

5. At that point, this court, on its own motion and after
examining the statutes relating to proceedings in the nature of
quo warranto, became concerned respecting the viability of any
complaint that purported to be brought under ORS 30.510, but
which neither was signed by nor alleged that it was being
prosecuted by a district attorney. Based on those concerns and
on other issues that had arisen since the state's motion to
dismiss, this court addressed two questions to the parties.

The parties now have weighed in on the issues posed by
the questions. The issue thus joined is an important one, and
this court still is concerned about it. However, for the reasons
that we now set out in the text, we conclude that the issue need
not be resolved in this case.